' AJMAL MIAN, J.-The petitioner filed nomination paper on 2-1.1984 for the by-election of seat No, 3 of T8wp Committee, Panoakil, which was to be held on 21-1-1984. The scrutiny of the nomination paper was to be made on 5th January, 1984 by the Returning Officer, Assistant Commissioner, Rohri. The petitioner was proposed by Atta Muhammad son of Nek Muhammad and seconded by Attaur Rehman son of Fakir Muhammad Shaikh. It seems that respondent No, I filed objections on 5-1-1984 before the Returning Officer, stating therein, that the nomination paper may be rejected for want of signatures of proposer and seconder and they were not present on 2.1-1984 and that they should not be allowed to sign the same. The Returning Officer after bearing the parties by order dated 5-1- 1984 allowed the proposer and seconder to sign as he held that it was minor defect which can be allowed to be remedied as per rule 19(3)(d)(ii) of the Sind Local Councils (Election) Rules 1979 (hereinafter referred to as the Rules). Respondent No, 1 being aggrieved by the above order of the Returning Officer filed appeal before respondent No, 2 who by his order, dated 9-1-1984 allowed the above appeal and rejected the petitioner's nomination paper on the ground that the signatures of the proposer and seconder on the. Nomination pa ,er were mandatory. The petitioner being aggrieved by the above order has filed the present petition on 11-1-1984 which was placed for Kacha Peshi and order on 12-1.1984. The petition was admitted for regular bearing and a notice was issued to the respondents for 15-1-1984 for the stay application. On the latter date it was submitted that there would be no election as the only candidate left, was respondent No, 1 and, therefore, it was ordered that respondents Nos. 2 and 3 shall not declare respondent No, 1 as elected till further order of the Court. The petition has come up today for regular hearing.
2. In support of the above petition Mr. M. A. Rashid has contended as follows :-
(i) That under rule 19 (3)(d) (ii) of the Rules, the Returning Officer was obliged not to reject the nomination paper on the ground of any defect which was not of substantial nature and might allow any such defect to be remedied forthwith and since the Returning Officer had exercised the power, respondent No, 2 as the appellate authority was not justified in rejecting the petitioner's nomination paper on the ground of want of signatures of the proposer and seconder.
' Mr. Ghulam Kadir Jatoi learned counsel for respondent No, 1 has urged as follows :-
(i) That under rule 17(3), it was mandatory that the proposer and seconder should have signed the nomination paper in Form HI and, therefore, the appellate authority was justified in rejecting the nomination paper, which was admittedly not signed by the proposer and seconder on 2-1-1984 when it was filed.
(ii) That since respondent No, 1 was left the only candidate after the rejection of the petitioner's nomination paper, he is deemed to have been declared elected in terms of rule 24 of the Rules from the seat in question.
(iii) That the above petition is not competent in view of rule 65.
' Mr. Zawar Hussain Jafferi, learned A. A.-G. Who appeared for the official respondents also contended that rejection of nomination paper by respondent No, 2 was legal.
3. Adverting to the first contention of the learned counsel for the parties, it may be advantageous to reproduce hereinbelow rules 17 (3) and 19(2)(3) which read as follows :- ' Rule 17(3).-Every proposal shall be made by a separate nomination paper in Form Ill which shall be signed by the proposer and the seconder and shall contain-
(a) a declaration signed by the candidate that he has Consented to the nomination and that he is not subject to any disqualification for being elected as a member ; and
(b) a declaration signed by the proposer and the seconder that neither of them has subscribed to any other nomination paper either as proposer or seconder.
' Rule 19(2)(3).-The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer may either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that-
(a) the candidate is not qualified to be elected as a member ;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper ;
(c) any provision of rule 17 or rule 18 has not been complied with ; or
(d) the signature of the proposer or the seconder is not genuine : Provided that-
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper ;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith ;
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll."
' It may be noticed that under rule 17(3) it has been provided that every proposal shall be made by separate nomination paper in Form III and shall be signed by the proposer and the seconder and shall contain a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as member and that the proposer and the seconder shall also sign a declaration that either of them has subscribed to any other nomination paper either as proposer or a seconder. Whereas sub-rule 3) of rule 19 provides that the Returning Officer shall in the presence of the persons attending the scrutiny under sub-rule (1) examine the nomination papers and decide any objection raised by any such person to any nomination paper. Furthermore, sub-rule (3) empowers the returning Officer either of his own motion or upon any objection conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that the candidate is not qualified to be elected as a member or the proposer or the seconder is not qualified to subscribe to the nomination paper or any provision of rule 17 or 18 has not been complied with or the signature of the proposer or seconder is not genuine. However, proviso to sub-rule (3) provides that the rejection of a nomination paper shall not invalidate the nomination of a candidates by any other valid nomination paper. It further provides that the Returning Officer shall not reject a nomination paper on the ground of any defect, which is not of a substantial nature and may allow any such defect to be remedied forthwith. It also provides that the Returning Officer shall not inquire into the correctness or validity of any entry in the electoral roll.
4. The point in controversy is, whether proviso to sub-rule (3) of rule 19 could be pressed into service by the Retuning Officer in order to rectify the omission by the proposer and seconder to sign or that in view of noncompliance of sub-rule (3) of rule 17 t e. The proposer and the seconder have not signed the nomination paper should have been rejected by the Returning Officer and whether it was validly rejected by the appellate authority.
' It may be observed that in para. 6 of the grounds of petition and in para. 4 of the affidavits of the proposer and seconder, it has been expressly averred that the proposer and the seconder were present alongwith the candidate on 2-1-1984 on the date of filing of the nomination paper. No counter-affidavit to deny this averment has been filed by respondent No, 1 or by any other respondent. However. Mr. Ghulam Kadir Jatoi learned counsel for respondent No, 1 has submitted that in the aforesaid objection, dated 5-1-1984 filed by respondent No, I before the Returning Officer on the date of scrutiny, it was stated that the proposer and seconder were not present and that this fact was not denied. It may be observed that the objection was filed on 5-1-1984. It was decided then and there by the Returning Officer by his order dated 5-1-1984 rejecting respondent No, l's above objection. The above objection was not on oath, whereas the averment made in the petition as well as in the two affidavits of the proposer and seconder are on oath before this Court and, therefore, in the absence of any counter-affidavit denying the above averment, it is to be presumed that the above averment is correct: We may also observe that it is usual that a candidate takes along-A with himself proposer and seconder before the Returning Officer for filin nomination paper and, therefore, the above statements of the petitioner and the proposer and seconder on oath are more in consonance with the above practice and even otherwise as observed, are to be believed in the absence of any denial on oath.
5. Mr. M. A. Rashid in support of his contention has relied upon the case of M S. Abid alias Muhammad Abid v. Provincial Election Authority and 2 others (I), whereas Mr. Ghulam Kadir Jatoi in furtherance of his contention relied upon the case of Soomar v. Jamal and 2 others (2). Incidentally it may be mentioned that one of us, Ajmal Mian, J. Was a party to both of the above judgments. In the first case, the Election Authority constituted under the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) allowed the rectification of the following defects :-
(I) non-joinder of all the candidates.
(ii) absence of signature of petitioner on the petition and annexures and the verification.
' It was contended before the Division Bench that the above defects could not have been allowed to be 'rectified by the Election Authority as under rule 66 of the Rules joinder of all the contesting candidates was mandatory as the word "shall" was used and. That similarly under sub-rule (3) of rule 67 signing of the petition and the annexures was mandatory as the word "shall" was used, and therefore, the election petition was liable to be dismissed under sub-rule (1) of rule 68 which provides that if the Election Authority is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed. However, the division Bench repelled the above contention and held that the Election Authority was competent in law to allow the above rectification of the defects. Reliance was placed on the case of S. M. Ayub v. Usif Shah and others
(3) in which the Hon'ble Supreme Court while considering identical provisions to rules 66 and 67 in the form of sections 59 and 67 of the National and Provincial Assemblies (Election) Act, 1964 took the same view which was followed by the above Division Bench. It may be advantageous to quote a portion from the above judgment of the Supreme Court which was delivered by S. A. Rehman, J.
Which reads as follows :- "The law does not appear to display a perfectionist attitude in this behalf and it seems to us, with reason. The law of pleading has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specifically in the Moffusil, suffer from various minor defects. A very strict view on the technical place of such pleadings without regard to the substance of the matter would defeat the ends of justice. Unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, should be astute not to ascribe the Courts to the Legislature a desire to be hypertechnical, so as to smother genuine litigation." {{FOOT NOTE}}
(1) 1983 CLC 501 (2) 1983 CLC 314
(3) PLD 1967 SC 486 {{FOOT NOTE}} ' It may also be pertinent to quote hereinbelow para. 7 from the Division Bench judgment, which reads as follows :-
(7) In our opinion above observations are fully applicable to the present case. The non-joinder of unimportant parties was defect of a very minor and technical nature and so also the absence of signature of the petitioner the (present respondent No, 2) on the Election Petition, which was signed by .His Advocate. There is nothing in the Election Rules to prevent the Election Authority from permitting a petitioner to sign a petition or to verify a petition after it has been filed. Action of the Election Authority in the present case permitting respondent No, 2 to sign and verify the,/plaint and annexures would not, in our opinion, amount to any illegality or irregularity so as to vitiate his order.'
6. In our view, the above Supreme Court case and the Division Bench case are on all fours applicable to the instant case. We may observe that the present come stands on higher pedestal as compared to the above Division Bench case for the reason that rule 19 (3)(d)(ii) provides that the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith. This provision is to be viewed with the fact proved that the proposer and the seconder were present alongwith the candidate on the date of filing of the nomination paper before the Returning Officer, we are inclined to take the view that rule 17 (3) is to be read in conjunction with rule 19 (3) (d) (ii).
Furthermore, the Courts always lean to placing construction on a section or a rule relation to election which will advance right of franchise and would not defranchise.
' The case relied upon by Mr. Ghulam. Kadir Jatoi has no application to the present case. In the above cases the point in issue was, whether the Returning Officer in case of tie between two candidates on account of equal votes can resolve the same by tossing a coin instead of drawing a lot as provided under rule 42 of the Rules, which provides that where after consolidation of the results of the count under rule 41. It is found that there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Returning Officer shall forthwith draw a lot in respect of such candidates. It is, therefore, evident that the facts of the above case are different as under any rule the Returning Officer was not empowered to adopt any other manner for resolving a tie in case of securing equal votes by two candidate other than the mode provided for in rule 42.
7. As regards the second contention of Mr. Jatoi that as respondent No, 1 after the rejection of the petitioner's nomination paper was the only candidate remaining in the field, he is deemed to have been elected in terms of rule 24 on the decision of the appeal, it may be pertinent to refer to sub- rule (1) of rule 24 which reads as follows :- "24(1). Where, after scrutiny under rule 19 only such number of person' remain as validly nominated candidates as are equal to the numbed' of members to be elected from a unit or where after withdrawal under rule 21 only such number of persons is left as contesting candidates as are equal to the number of members, to be elected from a unit, the Returning Officer shall, by public notice, declare such candidates to be elected to the Seats : ' Provided that if after scrutiny any candidate indicates that he intends to file an appeal under sub- rule (5) of ride 19, against the rejection of his nomination paper, no person shall be declared elected until the period for filing such appeal has expired and no such appeal has been filed or where an appeal is filed, until the disposal of such appeal."
' It may be noticed that under the above rule inter alia it has been provided that no person shall be declared elected until the period of filing appeal against the rejection of nomination paper expires or where an appeal is filed until the disposal of such appeal. In the instant case the appeal was disposed of on 9-1-19 4, whereas the present petition was filed on 1-11-1984 and stay was granted against declaring respondent No, 1 as elected by the Returning Officer. Respondent No, 1 has not brought on record any declaration made by the Returning Officer declaring him elected. Even an averment has been made in the counter-affidavit. In this view of the matter, the above contention of Mr. Jatoi has no force. Even otherwise this Court would have been competent to nullify all the actions which were taken in pursuance of the passing of the impugned order while declaring the impugned order as without lawful authority.
8. The only contention which remains to be examined is, whether in view of rule 65 of the Rules, which provides that no election shall be called in question except by an election petition made by a candidate for the election, the present petition is competent. Mr. Jatoi has referred to the case of Dost Muhammad Malik v. The Returning Officer and another (1) and the case of Baqra v.
Muhammad Yousaf and another (2). In the first case the Full Bench of the Lahore High Court on the basis Article 171 of the Constitution of Pakistan (1962) held that in view of the express bar provided in the Constitution from challenging election, the writ petition was not competent. In the above Division Bench case the above Full Bench case was followed and the same view was taken. It may be pertinent to quote hereinbelow Article 171 of the Constitution of 1962 which reads as follows :- "171.-(1) Subject to clause (2) of this Article, provision may be made by law-
(a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission; and
(b) for other disputes arising in connection with such an election or referendum to be finally determined by a Tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law.
(2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever.
(3) The validity of anything done by the Commissioner under Articles ,60, 161 and 162 shall not be called in question in any manner before or by any Court or authority whatsoever."
' It may be noticed that under the above Article of the Constitution it was expressly provided that for disputes arising in connection with the counting of the votes in an election or refrendurn required to be held or any other {{FOOT NOTE}}
(1) PLD 1965 (W. P.) Lab. 560 (2) PLD 1966 (W. P.) Lab. 149 {{FOOT NOTE}} ' Dispute arising in connection with election or referendum it will be determined by the Commissioner or an Election Commission and Tribunal to be established. Mr. Jatoi was unable to point out any parallel provision either in the provisions of 1973 Constitution which have been kept intact or in the P. C.
0. Reliance has only be placed on rule 65 of the Rules. In our vie Constitutional jurisdiction of the High Court, cannot be taken away by a D rule. It can be taken away by the Constitution itself.
However, we may observe that generally a High Court is reluctant in entertaining election petition which involves disputed questions of fact but in the instant case only E interpretation of rules 17 and 19 of the. Rules is involved and no disputed question of fact is involved. We are, therefore, of the view that even otherwise it is a fit case in which the High Court should exercise writ jurisdiction.
9. For the aforesaid reasons the writ is allowed. The impugned order and the subsequent action taken in pursuance thereof are declared as bean F without lawful authority and of no legal effect.
The election Authority is directed to hold by-election of Seat No, 3 Town Committee, Panoakil in accordance with law. 1 he petition stands disposed of with no order as to costs.